Commentary Magazine

Law, Liberty, and Psychiatry, by Thomas S. Szasz

The Free Criminal

Law, Liberty, and Psychiatry.
by Thomas S. Szasz.
Macmillan. 281 pp. $7.50.

The subject of this book is the unfortunate marriage of law and psychiatry in the United States. It recommends that they be divorced immediately. The author, who is himself a psychoanalyst and a professor of psychiatry, holds some old-fashioned views: he exalts liberty as a great social good and that major premise of liberty, moral responsibility, as a great individual good. He is really in earnest: he says that most of those who are called mentally ill should be granted their liberty and their responsibility, of which they are deprived by the joint workings of psychiatry and the law in far too many cases.

This is a matter of social importance, about which there should be instituted that sort of heated public debate prerequisite to serious reform. There was a chance that the trial of Lee Oswald might have started this debate. Socially, the worst consequence of Ruby’s shooting Oswald (supposing Oswald to have been demonstrably guilty) was the substitution of a probably unimportant trial for one in which this social issue would at least have been clearly raised and which would possibly have become the stimulus for a reform movement.

Ruby pleads “not guilty by reason of insanity,” but no debate is likely to be started by this plea, whatever the outcome. If his plea fails and he is executed, society will accept this as a sort of pest riddance. If his plea succeeds and he is put in a mental hospital, no strong desire for vengeance will have been thwarted and his incarceration will be accepted as a usual operation of the law. The vexing question of the responsibility of the Dallas police in this murder will be allowed to subside into that twilight sleep in which society allows the whole question of police collusion with the underworld to stir restlessly like a bad dream. The question of liberty will scarcely have been roused from its complacent dream: so long as Ruby’s locked up, it doesn’t matter much what he’s locked in.

But to Dr. Szasz it matters very much what a person who has committed a crime is locked in and why he is locked there. Dr. Szasz is an old-fashioned, stubborn liberal capable of being outraged at society’s dereliction of duty. He refuses to acquiesce in the general evasiveness. He is a gadfly. He won’t let the big old question about free will and determinism alone, even though it cannot be answered once and for all and even though the law is doing a pretty decent job of avoiding it by turning over to psychiatry as many cases as it can.

Here, approximately, is the structure of Dr. Szasz’s argument. If we value political freedom, we must assume that each person is to some degree free to perform important actions. To the extent that he has freely chosen to do an act, he is responsible for the consequences of the act, good and bad. If the act breaks the rules of the game as society has laid them down, then he is guilty, and society is obligated, by its own rules, to blame and punish him. To refuse to punish—and even more, to refuse to blame—an adult who has broken the rules of the social game is to say to him in effect: “If you were a man, we would punish you. By not punishing you, we show you where we rank you: below slaves, for we punish them; below idiots, for we cannot blame those who cannot understand what we say to them; nowhere, in fact.” For society to substitute enforced psychiatric treatment of the law-breaker for the punishment his act requires is to pollute genuine psychiatry, to rob the criminal of his dignity as a man, and severely to abridge freedom in society as a whole. A society which cherishes the freedom and dignity of its individual citizens will punish those who break its laws.

(As a teacher of literature who believes that great books are in some way sources of moral wisdom, I interject the observation that I can think of no great book which runs counter to Dr. Szasz’s argument, but of several which more or less directly support it—for example, The Oresteia, Oedipus Rex and Oedipus at Colonus, The Divine Comedy, Crime and Punishment. In any dispute on an ethical issue, when I see a number of great writers on one side and on the other side nothing but local practice, I am disposed in favor of the first side, even though the local practice is the custom of my own age and nation and has the guns with it.)

Dr. Szasz’s argument necessarily requires anyone who has committed a crime to be brought to trial, accused, convicted, and punished. The only time for psychiatry to enter the proceedings would be after the conviction. If the punishment were death and if the law required the condemned man to be sane enough to understand why he was being killed, then psychiatrists might be called in to say whether in their opinion he was sane enough to understand what was being said to him. But the final decision on his sanity would have to be made by a judge who would rely on his own observation of the prisoner as much as on the psychiatrists’ report. If the punishment were life imprisonment, then psychiatrists would be called in to treat him or to hospitalize him in a prison hospital only as he was not able to function as a prisoner, precisely as medical doctors treat and hospitalize prisoners with physical ailments.

But according to standard American practice now, psychiatry can, and often does, muddy the operations of the law in one or more of several ways. For example, a man who commits a murder could be declared to have been insane at the time he committed the crime, in which case no trial would take place, though he would be held in a state mental hospital for an indeterminate time, almost certainly for life. Since the living conditions in state mental hospitals are commonly as bad as they are in state prisons and often worse, and since the reason given for his detention there would be that he was ill, he would be denied the possible benefits of social punishment while being subjected to all the pains of incarceration. And since the psychiatrists, from the point of view of any prisoner/patient, are in fact guards, are agents of the state more than they are agents of medical science or of the prisoner/patient’s own will, they almost certainly would not be able to help him—as a psychiatrist can often help a patient who has come to him voluntarily and who can voluntarily discontinue treatment at any time.



A murderer’s trial can also be frustrated by the psychiatrists’ declaring him too ill mentally to stand trial. This, Dr. Szasz argues, is a legitimate reason not to try a person only if the accused is grossly and obviously unable to comprehend what is happening. If we are willing to try a moron for murder, as we are, then we must also try a person whose sanity is impaired for other reasons but who is not thoroughly, in the opinion of judge and jury, cut off from other people. But any serious offender who is declared incapable of standing trial is then turned over, without due process and without fixed sentence, to psychiatrists/jailers who treat/pseudo-punish him in a hospital/prison for an indeterminate time.

If, finally, an offender is sentenced to death, his execution can be prevented by the psychiatrists’ declaring him too mentally ill to be executable. This is sometimes a valid reason for staying execution, but commonly it is not; for it makes little sense to leave a citizen undisturbed so long as he manages to get along, but then, as soon as he kills someone, to discover that he is burdened with a severe case of paranoid schizophrenia, and so is not well enough to be executed.

The crucial question, of course, is freedom of the will. Without will, no crime and no punishment. Without reason, no will. Disturbance of the reason, impairment of the will. Ordinary citizens and the men of law are unsure about how to measure the extent of a disturbance in a man’s reason. Psychiatry has thrown doubt on the traditional answer (which is roughly Dr. Szasz’s answer: treat him like a man as long as you possibly can). No decent person wants to blame a man who was not able to be guilty, or to inflict pain on a man who does not know the pain is punishment. But how to tell in any given case? In this very large area of contingency and opinion, psychiatry has officiously offered its services, partly from the self-serving desire of some psychiatrists to be important and powerful and partly from philosophy. According to this philosophy, there is probably no such thing as freedom of the will—which is to say, an uncaused or self-caused wish. Second, even if there is some free will, there is none in mental illness, for it is of the nature of mental illness for acts to be forced by unconscious motives. Third, even if there is a trace of free will left in those who are mentally sick, there is certainly none in a criminal act, since (O perfect-circle logic!) to commit a crime is on the face of it proof of mental illness. (This astonishing conclusion is possible only because psychiatry has no fixed standard of measurement, such as the speed of light or the boiling point of water, but measures individual behavior according to social customs and manners. In other words, it is somewhat as though physics had only rubber yardsticks to measure with.)

There are no legally definable standards by which to measure mental health (so that it is possible for institutional psychiatrists to say that they are keeping patients locked up for their mental health). Malpractice suits are not in fact brought against institutional psychiatrists (Dr. Szasz urges such suits to the attention of eager lawyers). If a patient is, as he is quite likely to be, weak, ignorant, poor, and terrified, as well as uncertain of his competence, he does not know the few legal redresses available to him; and the psychiatrists (for the good of his mental health naturally) carefully refrain from telling him what those redresses are, as medical doctors used to bully patients before malpractice suits scared them into treating patients like people most of the time.

Dr. Szasz sees all this as leading to what he terms “the therapeutic state,” in which the citizen is viewed as a dependent whose health and welfare (and body and mind) must constantly be under surveillance and whose violation of the social rules is interpreted as a symptom of mental illness which must be treated whether or not he wants the treatment and even though the treatment, as in the case of a lobotomy, may be a form of destruction of the person more dreadful than death. (See Ken Kesey’s novel One Flew Over the Cuckoo’s Nest.)



Whether American society is ready to accept “the therapeutic state,” I am not sure. That we are threatened with it, Dr. Szasz argues persuasively (though he does not always argue calmly and lucidly), and he cites convincing examples in support of his argument. The one that chilled me the most was a quotation from a speech delivered in 1961 by Attorney General Robert Kennedy, in which he expressed approval of open-end sentences, their length to be determined by therapeutic considerations.

. . . more than half of all. defendants committed to prison are sentenced under some form of indeterminate sentence. . . . In the long run, a flexible sentencing procedure which works to rehabilitate offenders offers the best hope in the majority of cases in the federal courts.

In other words, we are not content with judging that a man is guilty of a particular act and then putting him in prison for a fixed period to punish him for the act, leaving his soul for him to save or lose as he wills; we presume to judge the health of his soul and to hang on to him till we judge his soul to be in a condition that pleases us. This is the next greatest presumptuousness possible. The greatest is that of Dostoevsky’s Grand Inquisitor: he too took it upon himself to control other people’s souls, but he knew what he was doing.

I am sure that a lot of people have no objection to drifting into “the therapeutic state” as we seem to be doing. (How zealous the mental health experts are in scaring us into their arms. The last I heard, about one in six of us are supposed to be mentally well, and a good tenth of the five-sixths who are mentally sick are psychotic. Doctor! Help!) One way to get a glimpse of the spirit of the age is to read the themes of “C” students in a provincial college. One of mine recently described King David’s taking of Bath-sheba as “the acting out of lustful fantasies.”

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